Biotechnology and the Law: Co-Operation Nationally and Internationally
| Author | Douglas J Whalan,Keith F Kaney |
| Published date | 01 March 1986 |
| DOI | 10.1177/0067205X8601600105 |
| Date | 01 March 1986 |
| Subject Matter | Article |
BIOTECHNOLOGY AND
THE
LAW:
CO-OPERATION NATIONALLY AND INTERNATIONALLY
By
DOUGLAS
J
WHALAN
&
KEITH
FKANEY*
There
is
agrowing awareness in Australia
that
current laws are inadequate
to protect the increasing industrial application
of
biotechnology. To overcome
these difficulties there
is
aneed for co-operation both nationally
and
inter-
nationally. The Biological Control Act 1984 (Cth) and the Patents Amend-
ment Act 1984 (Cth) are indicative
of
atrend towards this end.
The Biological Control Act 1984 (Cth) involves co-operation between the
Commonwealth
and
the States to overcome gaps in the Commonwealth's
power, while the Patents Amendment Act 1984 (Cth) involves international
co-operation under the Budapest Treaty
on
the International Recognition
of
the Deposit
of
Micro-organisms for the Purposes
of
Patent Procedures
1977. Whereas the Patents Amendment Act 1984 (Cth) extends
and
secures
the patent protection available for biotechnological inventions, the Biological
Control Act 1984 (Cth) aims to protect certain scientific endeavours from
undue interference from the law itself.
THE
BIOLOGICAL CONTROL
ACT
1984 (CTH)
In 1980, the CSIRO released abiological control agent against Echium,
anoxious weed more commonly known as Paterson's Curse or, to those who
regard it as aboon, Salvation Jane.
An
action for private nuisance was
commenced in the High Courtlwhere an interim injunction was granted.
The matter was subsequently referred to the Supreme
Court
of
South
Australia. There, the parties agreed to discontinue court proceedings, with
CSIRO agreeing to halt its program subject to the proviso that it was at liberty
to apply
to
have the injunction set aside
or
varied.2
This result was helpful to the apiarists and dry land graziers who potentially
stood to lose about $1.8 million per year
if
the program proceeded.3
However, it was far from helpful to the rest
of
the agricultural sector who
had spent large amounts
of
money attempting
to
control the plant, but had
nevertheless .seen their livestock
and
crop productivity· drop as aresult
of
it. Indeed, it has been estimated that agriculture would benefit, in time, by
up to
$35
million annually if the weed were eradicated.4The problem
is
that
*Both
of
the Faculty
of
Law
of
The Australian National University.
IRonald MacPerry, John William Hincks, Stephen John Victor and Paul Griffiths v
Commonwealth Scientific and Industrial Research Organization (unreported judgment
of
Stephen JNo 9
of
1980).
2Industries Assistance Commission. Draft Report on Biological Control
of
Echium Species
(including Paterson's Curse/Salvation Jane). AGPS
1985
esp at p1.2.
3Ibid Summary
(l).
4Ibid.
To continue reading
Request your trial